Are voter ID laws the new poll tax?

September 28, 2007|Daniel P. Tokaji | Daniel P. Tokaji is a law professor at Ohio State University, where he teaches election law.

The U.S. Supreme Court announced this week that it would hear a challenge to an Indiana law that requires people to show government-issued photo identification in order to have their votes counted. Two other states have passed such laws in recent years, and others have debated the issue. Promoters of these laws argue that they are needed to prevent fraud. Opponents claim that they will impede eligible citizens from voting -- a disproportionate number of them poor, elderly, disabled or racial minorities.

In fact, there's reason to believe that suppressing turnout is precisely the motivation behind the strictest voter ID laws. There are almost no documented cases of people pretending to be someone they're not at the polls, the only "problem" that these laws purport to address. On the other hand, there is considerable evidence that requiring ID will suppress turnout among some groups of voters.

Take Wisconsin, where the Democratic governor three times vetoed photo ID bills passed by the Republican-controlled Legislature. According to one study, more than 80% of Wisconsin residents have a driver's license. But among African American men aged 18 to 24, only 22% have a valid license. Other groups less likely to have photo ID include Latinos, college students and the elderly.

To combat the discrimination argument, some states have agreed to make ID cards free. Yet voters still must pay for the documents needed to get the ID, such as birth certificates. Even more significant is the burden on voters' time, disproportionately borne by poorer voters who don't own a car. How many of them will expend the time and money to collect the required documents and then wait in line at the state motor vehicle office, only to face the prospect of yet another line when they go to vote? A few surely will, but many will not.

Nevertheless, the U.S. 7th Circuit Court of Appeals upheld the Indiana law. The opinion by Judge Richard Posner, a prominent conservative, downplayed the law's effect by saying it's "exceedingly difficult to maneuver in today's America without photo ID." This may be true of the elite circles in which Posner travels, but the reality is that many less-fortunate people in our society don't have photo ID.

This burden that Indiana's law imposes might be defensible if the state had evidence that ID is needed to prevent polling place fraud, but that evidence simply doesn't exist. The state of Indiana couldn't document a single case of voter impersonation at the polls. In other words, voter ID is a solution in search of a problem.

In challenging this law, voting rights advocates rely on a 1966 case that struck down poll taxes, which were used to disenfranchise African Americans in some Southern states. In that opinion, the Supreme Court held that even a $1.50 poll tax discriminated against voters based on their economic status. The court declared that restrictions on the right to vote must be "closely scrutinized and carefully confined."

Some are optimistic that the Supreme Court will follow this precedent and strike down Indiana's law, thereby placing comparably strict laws in jeopardy. But the ascendant conservative majority may show no greater respect for the right to vote -- or for precedent -- than Posner did. In its last term, the court took a sharp turn to the right on abortion, affirmative action and freedom of speech. While leaving the facade of prior cases standing, the court eviscerated the rationale on which its precedents were based.

It's quite possible that the Supreme Court will do the same to voting rights law. Just last year, it lifted a court order against an Arizona voter ID law that required photo ID or two forms of non-photo ID. That opinion turned the right to vote on its head. The court suggested that the mere perception of voter fraud was equivalent to vote dilution. According to the court, citizens might "feel disenfranchised" if they believe, correctly or not, that others are committing vote fraud.

A decision upholding Indiana's ID law on this rationale would have major implications for the 2008 election. It would give self-interested politicians the green light to impose burdensome restrictions on those voters likely to favor the other party's candidates. Instead, the Supreme Court should faithfully adhere to its poll tax precedent and nip discriminatory ID laws in the bud.